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Over the last century, all common law countries have experienced a movement away from a highly discretionary sentencing environment to one in which judicial discretion is more constrained. (For general discussion of structured sentencing, see chapter 6 of A. von Hirsch, A. Ashworth and J. V. Roberts (eds), Principled Sentencing: Readings on Theory and Policy (3rd edn, Oxford: Hart, 2009).) Some jurisdictions have transformed their sentencing environments by introducing relatively inflexible and tightly binding guideline schemes. Others have taken a middle ground – creating advisory guidance schemes – while a third category has resisted all attempts to structure judicial discretion. This essay describes and compares the divergent histories of two jurisdictions – Canada, and England and Wales – as they have confronted the challenge of structuring sentencing. Despite similarities in the way that sentencing is approached in the two countries they have taken remarkably divergent paths over the past 25 years – and not in the directions that might have been anticipated back in the mid 1980s. After a promising start in that decade, Canada has rejected the adoption of sentencing guidelines, and elected to retain its traditional, highly discretionary approach to sentencing. In contrast, England and Wales has slowly, but surely, adopted a comprehensive and relatively binding set of guidelines, although this outcome also seemed unlikely in 1988.
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The high rates of Aboriginal admissions to custody have been noted by Commissions of Inquiry, all levels of government, and Corrections texts in Canada for some time. In the most recent year for which data are available (2000–2001), Aboriginal offenders accounted for 19% of provincial admissions and 17% of federal admissions to custody. This article examines provincial custodial sentenced admissions for Aboriginal and non-Aboriginal offenders since 1978, when national statistics including the ethnicity of the offender were first published. Particular emphasis is paid in this analysis to recent trends during a period in which Parliament and the Supreme Court have tried to address the problem, the former by statutory recognition of the unique nature of Aboriginal offenders, the latter by judgments interpreting Criminal Code sentencing provisions introduced in 1996. The findings suggest that little progress has been made in reducing the number of Aboriginal sentenced admissions over the past few decades. Although the volume of Aboriginal admissions to custody has declined since 1993–1994, non-Aboriginal admissions have declined at an even faster rate, suggesting that specific policy changes are not responsible for the Aboriginal decline.
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